Supreme Court refuses to review ‘no’ to same-sex marriage | India News
NEW DELHI: For the second time in two years, Supreme Court has junked pleas for legalising same-sex marriages, with a five-judge bench on Thursday unanimously rejecting a bunch of petitions by LGBTQ+ community members seeking review of the court’s October 2023 judgment that had emphatically dismissed PILs seeking the relief.
The petitioners had sought a review of SC’s order on October 17, 2023, where a bench of then CJI D Y Chandrachud and Justices S K Kaul, S R Bhat, Hima Kohli and P S Narasimha unanimously rejected pleas to legalise same-sex marriages, and by a three to two majority, refused to confer adoption rights on queer couples.
On Thursday, a bench led by Justice B R Gavai and comprising Justices Surya Kant, B V Nagarathna, P S Narasimha and Dipankar Datta unanimously ruled that the review petitions were “devoid of merit” and rejected the pleas for open-court hearing on the contentious social issue, which now stands more or less settled – same-sex marriage will remain illegal unless a law is enacted to make it legit.
The bench also held that the majority opinion of Justices Bhat and Kohli, with which Justice Narasimha had concurred, in the 2023 judgment required no interference as the review petitions failed to point out any error in the judgment.
This means the majority view of three judges in the Oct 2023 judgment now stands ratified by a five-judge bench through a well-considered order.
Same-sex marriage: LGBTQs still have option to file curative plea
We have carefully gone through the judgments delivered by Justice Bhat (former judge), speaking for himself and for Justice Kohli (former judge) as well as the concurring opinion expressed by one of us, Justice Narasimha, constituting majority view. We do not find any error apparent on the face of the record. We further find the view expressed in both judgments is in accordance with law and, as such, no interference is warranted. Accordingly, the review petitions are dismissed,” the bench said.
However, LGBTQ community members still have an option in the form of curative petition which, like review petitions, and if filed, would be taken up by a five-judge bench in chambers without the assistance of lawyers.
In the Oct 2023 verdict, Justices Chandrachud and Kaul had favoured social rights for queer couples while the other three had said it was for Parliament to decide the nature of social rights that could be conferred on couples in same-sex relationships. Several petitions seeking review of the 2023 judgement were filed, leading CJI Chandrachud to constitute a five-judge bench to hear these petitions in chambers.
However, after the retirement of CJI Chandrachud and Justices Kaul, Bhat and Kohli, CJI Sanjiv Khanna constituted a new bench to take up the review petitions and consider whether these required to be entertained and whether these should be posted for hearing in open court.
The 2023 judgment, despite asserting that queerness was neither urban nor elite, had unanimously ruled that the right to marry was not a fundamental right and the legislature had the power to regulate it in accordance with societal conditions.
Unequivocally stating that the legislature alone could effect changes in marriage laws and other consequential legislations to allow same-sex couples the right to legally tie the knot, SC had said it was not for the court to read down or insert words into Section 4 of the Special Marriage Act, 1954, to erase the statutorily essential man-woman component of a valid marriage.
Differing with Justices Chandrachud and Kaul on adoption rights to queer couples, Justices Bhat, Kohli and Narasimha had said how queer couples could achieve legal status for their relationships was an issue to be addressed by the legislature.
“The modalities of how it should play out, what it will entail etc are facets that the state — here the legislature and the executive — needs to exercise its power in furtherance of. Now, whether this will happen through proactive action of the state itself, or as a result of sustained public mobilisation, is a reality that will play out on India’s democratic stage, and something only time can tell,” the majority opinion had said.
Justice Chandrachud had decided to take up the petitions seeking review of the Oct 2023 judgment on July 10 last year by a bench led by him and comprising Justices Sanjiv Khanna, Hima Kohli, B V Nagarathna and P S Narasimha. However, Justice Khanna had recused from the case warranting the constitution of a new bench.